For a new law student or anyone else trying to understand legal matters, the Latin terminology that is often used in the legal profession can be a little confusing. “Obiter dicta” literally translates as “things said by the way.” By understanding obiter dicta in reference to written court decisions or opinions, you will understand which portions of a decision are binding authority for lower courts and which are not.

Steps

Part 1

Defining Obiter Dicta

1

Understand the direct meaning of "obiter dicta." With respect to court opinions, obiter dicta are the thoughts or observations stated in a case that are not directly relevant to the outcome of the case. While these thoughts may not pertain to the case at hand, they do have the potential to inform or guide future court decisions. [1]decision-making.

Obiter dicta is also regularly referred to as simply “dicta.”

2

Note the relevancy of obiter dicta in future court decisions. Obiter dicta can guide, inform, or enlighten future case reasoning, but they are not binding. This means that a future court does not have to follow any rule or observation made as obiter dicta in a previous court case. Rather, a court only need follow the rule of the case. Given that obiter dicta do not form a part of the reasoning of the case, subsequent courts can dismiss obiter dicta outright. Nevertheless, some obiter dicta have proven to be very influential in subsequent cases.[2]

Another commonly used term for obiter dicta is persuasive authority. Obiter dicta are not binding or mandatory authority for a court facing a similar case in the future. However, they can be used as persuasive authority or support for one’s opinion on whatever matter they address.

Whether or not a court will rely on obiter dicta in reaching a future decision is unknown. While some judges may utilize it to support a point or ruling, other judges may disregard it altogether. There is no requirement that judges use or even consider obiter dicta.

3

Realize that obiter dicta may take different forms. Some of the more commonly used types of obiter dicta include “what if” scenarios, “we are leaving this issue open for the future” statements, analogies, illustrations, and hypotheticals. Courts may even use obiter dicta to make a very pedantic point, such as whether it is proper to use the term “attorney’s fees” or “attorneys’ fees.”

Part 2

Identifying Obiter Dicta

1

Spend some time looking for obiter dicta when reviewing a case. It is also interesting to look for obiter dicta that have been influential in subsequent cases. Identifying obiter dicta can you help you understand the way in which judges can take obiter dicta and use it in support of their decisions.

2

Identify the holding or ruling in the court opinion. In order to determine whether language in a court opinion is obiter dicta, you first must identify the rule of the case. Look for language indicating a ruling, such as “we hold that,” “our decision is,” or a reference to which party won the case.

3

Isolate all language in the case, both facts and law, that directly supports the rule of the case. This language normally constitutes the rationale of a case and gives information that is necessary to or supportive of the outcome of the case. This includes any reasoning by the judge that supports his or her ultimate conclusion.

For example, if the rule of the case is that the sale of trucks is governed by the Uniform Commercial Code, then the fact that the case concerns the sale of a truck and the law used in the case, i.e. the Uniform Commercial Code, are both necessary to the result reached in the case. This means that the identified facts and law are part of the court’s ruling, not obiter dicta.

4

Consider the remaining language in the case. If they address a situation different than that presented in the court’s opinion, or are only marginally relevant to the case at hand, then they are likely to be considered to be obiter dicta. In other words, obiter dicta are not essential to the outcome of the case.

For instance, in the case involving the truck sale being governed by the Uniform Commercial Code, the observation by the judge that SUVs also ought to be governed by the Uniform Commercial Code is obiter dicta, because it is not dealing with the case at issue.

Part 3

Distinguishing Between Obiter Dicta and Judicial Dicta

1

Determine the significance of the dicta at issue. While obiter dicta are “by the way” statements by a judge, judicial dicta carry much more weight. Judicial dicta are the result of a comprehensive discussion of the legal issues in the case, and thus should generally followed by judges in future cases.

Judges need not follow even judicial dicta if they have a strong reason for doing so, or if the judicial dicta are clearly erroneous in some respect.

2

Understand that judicial dicta still do not constitute binding authority. While judicial dicta might be highly persuasive or very logical to the rule of the case, it is still not binding authority that a court absolutely has to follow.

3

Distinguish obiter dicta by asking whether it supports or relates to the holding of the case. If it makes a point other than the rule of the case, then it’s probably obiter dicta. This type of dicta is more like an offhand remark or an off-topic comment than a statement that relates to the reasoning of the court’s opinion.

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Tips

Obiter dicta can be useful when arguing the other side of a case and aiming to overturn a precedent, especially where the analogy adopted by the obiter dicta fits a current legal problem before the court.

Warnings

Always remember that obiter dicta are not binding. They are persuasive statements or judicial observations only.